In the last of our series on civil liberties, we look at the difficulty of reconciling traditional freedoms of expression with the new demands of national security

IN COUNTRIES at war, freedoms of the press and of speech are often restricted. For that reason, al-Qaeda's attacks of September 11th 2001, by precipitating a “war on terror”, also raised questions—both legal and moral—about the role of the media in free societies.

Several Western governments have used national security as a justification for limiting certain sorts of public information and public speech. The press itself has been torn: sometimes it has refused to accept limits on its freedom of expression (as when newspapers worldwide published cartoons of the prophet Muhammad that were offensive to Muslims); sometimes it has accepted them (as when those newspapers apologised). Meanwhile, the media have managed to continue their normal work, uncovering abuses at the Guantánamo and Abu Ghraib prisons, for example. So what has happened to freedom of expression under the war on terror?

If you take at face value the lip service that almost all countries pay to a free press—160 of the United Nation's 192 members have ratified the International Covenant on Civil and Political Rights (ICCPR)—then freedom of expression has had a tough time. In Pakistan this summer, lawyers and pro-democracy activists took to the streets to demand the reinstatement of the country's chief justice after his removal by General Pervez Musharraf. They succeeded. But more than 30 journalists covering later demonstrations against the general's pursuit of another term as president were injured when the police used violence against the protestors. China, whose constitution states that its citizens “enjoy freedom of speech...[and] of the press”, has announced a new crackdown on “false news”. And this week marks the first anniversary of the murder in Moscow of Anna Politkovskaya, Russia's best-known investigative writer: she is one of 18 journalists to be killed in the country since President Vladimir Putin came to power in 2000.

Shooting the messengers

Reporters Without Borders, a lobbying organisation based in Paris, says that 113 journalists and other media workers were killed in 2006 (half of them in Iraq). Another 86 have been killed and 134 imprisoned so far this year, along with 64 “cyberdissidents”. The International Federation of Journalists, based in Brussels, puts the death toll higher, reporting “at least” 155 media workers killed last year. Whatever the real numbers, 2006 seems to have been the worst for many years, if not ever. In December 2006 the UN for the first time issued a statement condemning the targeting of journalists and calling for the prosecution of their killers.

The rising numbers of dead and jailed does not on its own mean that press freedom is everywhere in decline. Many of the reporters killed in Iraq—more than 200 since the invasion of 2003—have been Iraqis working for the foreign media, murdered not so much because they were members of the press as because they were regarded by Iraqi insurgents as “spies”. To some degree, the global increase in the number of journalists being killed, kidnapped and otherwise harassed may signify that more journalists are at work, and are growing bolder.

Nonetheless, Freedom House, a conservative American think-tank, reckons that press freedom suffered “continued global decline” in 2006. It reported particularly troubling trends in Asia, the former Soviet Union and Latin America. Attacks on the media, Freedom House points out, are not only bad in themselves; they are also a sign of worse to come, since they are almost invariably followed by assaults on other democratic institutions.

In repressive countries, the arrival of the internet has often been greeted by citizens as a wonderful way to bypass government control, enabling dissidents to air their views and keep in contact with the outside world. For a while, this new medium did seem relatively immune to regulation. The rest of the world found out about the first few weeks of the Burmese uprising partly through internet cafés in Yangon, which had worked out how to disable the military junta's internet-blocking software. But the army soon cracked down on the Burmese bloggers, just as they cracked down on everything else.

In a study of the internet in 40 countries (excluding Europe and the United States), OpenNet Initiative, an academic think-tank, says that censorship of the internet has spread from just a handful of countries five years ago to 26 nations. Some—notably China, Iran, Syria, Pakistan, Tunisia, Vietnam and Uzbekistan—are now blocking entire internet services such as YouTube, Skype and Google Maps.

Of course, it is not surprising that such countries are suppressing freedom of expression. They need little enough excuse to do it, and the only connection between their censorship and the war on terror is that their Western friends might be more inclined than usual to forbear from criticism in case they offend an ally in the war. But none of that applies to America.

Thanks to its constitution, and especially the first amendment, the United States gives greater protection to freedom of expression than any other country. Free expression generally trumps libel, prejudicial comment about pending court cases, and so-called “hate speech”. Even so, claims Peter Osnos, senior fellow at the Century Foundation, a New York-based think-tank, since September 2001 the Bush administration's attempts “to intimidate and punish the media, or at least to manipulate and mislead it, represents one of the most concerted assaults on the first amendment since it was written.”

Under American law, government documents may be classified only to protect national security. Presidents have at times no doubt stretched the definition, but George Bush has gone further than any. Partly as a result of an executive order of 2003, the number of documents being stamped secret or classified has almost quadrupled—from 5.8m under Bill Clinton in 1996 to more than 20m last year, according to figures released by the Information Security Oversight Office (part of America's national archives). Peter Galison, a Harvard professor, reckons that “the classified universe...is certainly not smaller and very probably much larger than [the] unclassified one.” If true, more is kept hidden than revealed.

A tilt too far

Mr Bush has always had a penchant for secrecy. In 2001 he signed an executive order allowing a president or vice-president to block the release of their papers, perhaps indefinitely, instead of within 12 years of leaving office.

But national security is the commonest justification for the vast expansion of classification. Seeking to explain his 2003 executive order, Mr Bush spoke of the need to strike the right balance between security and open government. “Our nation's progress depends on the free flow of information,” he conceded. “Nevertheless, throughout our history, the national defence has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security and our interactions with foreign nations.”

For many constitutional scholars, members of Congress and most journalists, the administration has tilted the balance too far towards maintaining “certain information...in confidence”. Congress has repeatedly been denied access to documents; newspapers have been threatened with prosecution for revealing “state secrets” (such as Mr Bush's warrantless eavesdropping programme), and journalists have been jailed for contempt of court after refusing to reveal their sources.

In Britain, too, freedom of expression has been under attack. With its Official Secrets Act, tough libel laws and tight restrictions on post-charge reporting of criminal investigations and trials, Britain has always placed more restrictions on free speech than America. It has now gone further. The 2006 Terrorism Act makes it a crime to publish a statement that “glorifies the commission or preparation” of a terrorist act, “whether in the past, in the future, or generally”. On the face of it, this might make criminal the statue of Nelson Mandela recently erected in Parliament Square: parts of the British government once regarded him as a terrorist.

Another British law, passed in 2005, criminalises demonstrations within a kilometre of Parliament without police permission, which normally has to be obtained at least six days in advance. This has led to farcical moments, such as the arrest of a woman picnicking in Parliament Square with “PEACE” marked in icing on a cake, and of another for reading out the names of British soldiers killed in Iraq.

EPAPolitkovskaya, pen cut down by sword

At the first meeting of the UN General Assembly in London in 1946, delegates described freedom of expression as “the touchstone of all human rights”. In practice, that freedom has never been totally unfettered, even in America. As the Supreme Court famously ruled in 1919, falsely shouting “Fire!” in a crowded theatre is not protected by the first amendment. Under the European Convention on Human Rights, freedom of expression is subject to a wide range of possible restrictions, including national laws banning speech likely to incite or “stir up” hatred against people on the basis of race, ethnic origin, religion or sexual orientation. Iceland goes further, criminalising speech that simply ridicules or insults someone on those grounds. Brazil, Singapore, Serbia, New Zealand and the Australian state of Victoria have similar race-hate laws.

Since 2001, these sorts of restrictions have been expanded to apply to Muslims. Before the attacks of that year, Britain, for example, had a law prohibiting the incitement of racial hatred which applied to Jews and Sikhs (because they were deemed by the courts to be racial as well as religious groups), but not to Muslims, Christians or others. Responding to the rise in verbal and physical attacks on Muslims after 2001, the government sought to plug that gap, proposing a ban on the “reckless” use of “threatening, insulting or abusive” language against anyone on the ground of his faith. Free-speech critics insisted that some element of intent be involved, claiming that otherwise religious works such as the Bible or the Koran could be deemed unlawful.

The government relented. Under the Racial and Religious Hatred Act, which came into force on October 1st, it is now a crime for someone to use threatening words or behaviour only “if he intends thereby to stir up religious hatred”. The new law does not outlaw “expressions of antipathy, dislike, ridicule, insult or abuse of particular religions”. Comedians and satirists will thus be able to continue to poke fun at religion without fear of prosecution. But members of the far-right British National Party will no longer be able to claim that Muslim gangs are grooming and raping British children and women, helping turn British society into a “multiracial hell”, as Nick Griffin, the party's leader, is alleged to have said.

Shutting up by choice

Sometimes the press has decided to censor itself. In September 2005 a Danish newspaper published cartoons of the prophet Muhammad. After violent protests throughout the Muslim world, most Western papers decided not to repeat the publication. Some editors who chose otherwise were reprimanded or removed. In Yemen and Jordan, they were arrested and their papers shut down.

At other times legislators have decided to curtail free speech for what they consider impeccable reasons. In much of mainland Europe, it is a crime to deny that the Holocaust took place. Last year David Irving, a British revisionist historian, was jailed by Austria for three years for this, though attempts to make Holocaust denial a crime throughout the European Union got nowhere this year. In Turkey, a string of journalists and writers have been prosecuted for the crime of “insulting Turkishness”, though both the president and prime minister say they want to abolish or amend the controversial article 301 of the penal code on which the prosecutions were based.

Attempts to gag the press in democratic countries usually fail. In America, Congress is considering a bill to allow journalists (and bloggers) to protect their sources without fear of prosecution—save when national security is at stake. Thomas Jefferson had something to say about that. “The only security of all is in a free press,” he wrote to Lafayette in 1823. “The force of public opinion cannot be resisted when permitted freely to be expressed. The agitation it produces must be submitted to. It is necessary—to keep the waters pure.”